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CAN I APPEAL
CAN I APPEAL?
REVIEW AND APPEAL OF TRUSTEE AND ADMINISTRATOR DECISIONS
Reproduced by express permission form the Commonwealth Government, Insolvency
and Trustee Services Australia.
January 2004 Edition
About Bankruptcy Regulations
Bankruptcy Regulation is an independent branch of ITSA which reports directly
to the Inspector-General in Bankruptcy.
It is responsible under the Bankruptcy Act for monitoring the standards of
trustees and debt agreement administrators.
Its role includes, on behalf of the Inspector-General in Bankruptcy, dealing
with requests for review of certain decisions made by trustees and dealing with
complaints against trustees and administrators.
If Bankruptcy Regulation is unable by law to help, it will advise you of your
options, such as making an application to the Court.
See the Prescribed Information booklet for definitions of bankruptcy terms
ITSA (Insolvency and Trustee Service Australia) is a Commonwealth government
agency. ITSA is the trustee when a registered trustee is not appointed.
Review procedures
Trustees
Trustees may make decisions which affect the rights of people whose estates
are being administered under the Bankruptcy Act, their creditors and
other people.
If you have a query or concern about a trustee decision you should first
contact them directly to seek resolution. If you do not resolve the matter you
may be able to use the review process within the Act.
You may ask for a review of certain decisions:
- in the first instance to your local Bankruptcy Regulation
office (see rear cover)
- at a later stage, if required, to the Administrative
Appeals Tribunal.
Other decisions may be reviewed by an application to the Court.
Debt agreement administrators
If you are a debtor, a creditor or someone who is party to a specific Debt
Agreement and you have a query or concern about the conduct of an administrator
you should first contact them directly to seek resolution. If you do not resolve
the matter you may refer it to Bankruptcy Regulation.
More information is available in the pamphlet:
Resolving Complaints about Trustees and Administrators
Decisions which can be reviewed
Bankruptcy Regulation may review the following decisions made by a trustee:
- filing of a notice of objection to discharge
- issuing an income contribution assessment
- rejecting a hardship application with respect to an income
contribution assessment
- rejecting an application for early discharge (applies only
to bankruptcies occurring prior to 5 May 2003.
Bankruptcy Regulation must also review such a decision if requested by the
Ombudsman.
You have a 60 day time limit from the date the trustee informs you of
their decision in which to loge a request for review.
You cannot apply to the Administrative Appeals Tribunal for review unless:
- a prior review request has been made to Bankruptcy
Regulation
- the review request has been assessed.
Bankruptcy Regulation does not have the authority to review any other
decision made by a trustee, such as:
- selling an asset (eg house, property, stock, plant and
equipment, motor vehicle etc)
- admitting/rejecting a proof of debt.
If you are unable to resolve the matter with the trustee, and the decision
cannot be reviewed by Bankruptcy Regulation, your only remedy may be to apply to
the Court.
For example, a creditor or bankrupt may apply to the Court for a review of a
decision by a trustee to admit or reject a proof of debt. The application to the
Court must be made within 21 days form the date of the decision.
What documentation do I need?
Your request to Bankruptcy Regulation for a review must be:
- in writing and lodged with Bankruptcy Regulation, and
- accompanied by:
- a copy of the document showing the trustee’s decision
- an explanation of why you consider the decision should be reviewed
- any documents to support your request.
Time period of review
Bankruptcy Regulation must decide within 60 days after you lodge a request
for review whether to review the decision and, if so, make a decision on the
review.
What does it cost?
There is no charge for a review undertaken by Bankruptcy Regulation.
How is my request handled?
Your request for a review will be acknowledged in writing within 7 days of
receipt.
Bankruptcy Regulation will contact the trustee to find out if further
documents are available to assist the review process.
You may need to provide further documents to enable the process to proceed.
If the investigation of your review is not finalized within 28 days, you will
be informed of the progress of the investigation.
Where Bankruptcy Regulation has not made a decision within 60 days, it is
taken to have reviewed the trustee’s decision and confirmed it.
If your review request is not upheld, Bankruptcy Regulation will advise you
of your further rights of appeal.
Decision in writing
Bankruptcy Regulation will provide you and the trustee with a written
decision.
Review of Trustee’s Fees
A creditor or bankrupt dissatisfied with a registered trustee’s claim for
fees and costs may request the Official Receiver for a review. This is called a
‘taxing of costs’. The request must be made within 28 days of you becoming aware
of the amount of the claim. Generally the person who requests that the claim be
taxed will bear the costs of taxation which is charged at an hourly rate. If
taxation results in a reduction of at least 15% in the amount of a claim, the
trustee must bear the costs of the taxation.
ITSA’s trustee fees imposed in a bankruptcy may be waived or remitted by
application to the Inspector-General in Bankruptcy. The grounds for remission of
waiver are that:
- payment of the fee will cause undue hardship to the person
liable to pay the fee; or
- there are exceptional circumstances in which it is proper
and reasonable to do so.
Applications, in writing, may be sent to Bankruptcy Regulation (see rear
cover) or any ITSA office. A decision will be made usually within 28 days of an
application.
What else can Bankruptcy Regulation help with?
If you have a complaint relating to the actions of a trustee, debt agreement
administrator or a controlling trustee, you should follow the procedure set out
in the pamphlet: Resolving Complaints about Trustees and Administrators
Further information about what you can expect from Bankruptcy Regulation and
ITSA generally is available in the Client Service Charter
Where to contact us
ITSA website wwwitsa.gov.au
For more information please contact a Bankruptcy Regulation Office
Queensland and NT
Bankruptcy Regulation
PO Box 10443, Adelaide St
Brisbane QLD 4000
Ph: 07 3360 5425
Fax: 07 3360 5402
email: br.qld@itsa.gov.au
New South Wales and ACT
Bankruptcy Regulation
Level 8, 135 King St
SYDNEY NSW 2000
Ph: 02 8233 7857
Fax: 02 8233 7805
email: br.nsw@itsa.gov.au
Western Australia
Bankruptcy Regulation
GPO Box H536
Perth WA 6001
Ph: 08 9268 1204
Fax: 08 9268 1287
email: br.wa@itsa.gov.au
Victoria and Tasmania
Bankruptcy Regulation
Level 10, 360 Elizabeth St
MELBOURNE VIC 3000
Ph: 03 9272 4800
Fax: 03 9272 4940
email: br.vic@itsa.gov.au
South Australia
Bankruptcy Regulation
GPO Box 2604
ADELAIDE SA 5001
Ph: 08 8112 4315
Fax: 08 8112 4304
email: br.sa@itsa.gov.au
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